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Hand v. Uninsured Employers' Fund11/30/2004
was entitled to 25% of his total disability benefits if he suffered a total wage loss as a result of his Occupational Disease. Since that time--as recognized by the WCC and conceded by the UEF--this Court, in the case of Schmill v. Liberty Northwest Insurance Corp., 2003 MT 80, 23, 315 Mont. 51, 23, 67 P.3d 290, 23, held that ยง 39-72-706, MCA, which allowed for apportionment of Occupational Disease benefits, while the apportionment of benefits awarded for a "work-related injury" was statutorily prohibited, violated the equal protection guarantee found at Article II, Section 4 of the Montana Constitution. Therefore, applying Schmill to this case, which was still open for review when Schmill was decided, we conclude that Hand is entitled to 100% of his total disability benefits if he suffers a total wage loss as a result of his Occupational Disease.
CONCLUSION
For the foregoing reasons, we reverse the August 28, 2002, Findings of Fact, Conclusions of Law, and Judgment of the Workers' Compensation Court, and remand for further proceedings consistent with this Opinion.
PATRICIA O. COTTER
We Concur:
KARLA M. GRAY
JOHN WARNER
W. WILLIAM LEAPHART
JAMES C. NELSON
JIM RICE
JOHN W. WHELAN
Honorable John W. Whelan, District Court Judge sitting for Justice Jim Regnier
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